Appeal from the Circuit Court for Prince George's County (BOWIE, J.).
The cause was argued before Henderson, Prescott, Horney and Sybert, JJ., and Keating, Jr., J., Associate Judge of the Second Judicial Circuit, specially assigned.
SYBERT, J., delivered the opinion of the Court.
On August 23, 1963, the appellant, Thomas A. Lillis, filed a bill in the Circuit Court for Prince George's County against his wife, Norma L. Lillis, the appellee, in which he sought a divorce a vinculo matrimonii, alleging eighteen months' voluntary separation, Code (1963 Cum.Supp.), Art. 16, sec. 24. A decree pro confesso was taken against the defendant wife and
the testimony of the husband and a corroborating witness was taken before an examiner. However, after reviewing the testimony, the Chancellor, in a memorandum, denied a decree of divorce, stating that there had been "too much opportunity to cohabit", but authorized the taking of additional testimony, if desired. Subsequently, the husband, the wife, and another corroborating witness gave further testimony. However, by decree of November 14, 1963, the Chancellor, upon consideration of all the testimony taken before the examiner, again denied a divorce. The plaintiff husband appeals. The wife did not contest the suit below, nor did she file a brief or argue the case in this Court.
The parties were married on April 7, 1956, in Prince George's County. They have no children. Shortly after the marriage they acquired a house in Beltsville, in the same county, where they lived together until February, 1962. Both parties testified that they had had marital difficulties for two or three years before that time, and that they had had no sexual relations since prior to June, 1961, when Mrs. Lillis had a miscarriage. They both testified that in February, 1962, they decided to separate. A settlement was agreed upon and the husband had papers prepared to give up his business in Maryland. Having a reserve commission in the armed services, he went back into the service and was sent to Orlando, Florida. The wife, who worked in Washington, D.C., continued to live in the Beltsville house.
The husband was discharged from the service after he had been in Florida for a little over a month, but he obtained a job and remained there for approximately six months. In July, 1962, his father, who lived in Pennsylvania, became seriously ill. The husband gave up his job in Florida in August, 1962, and went to Pennsylvania to be with his father. In the same month he returned to the house in Beltsville, where the wife was still living. The husband testified that he did so "mainly because of the money problem", since he was unemployed.
Both parties occupied the Beltsville house for approximately six weeks, until October, 1962, when the wife moved to St. Louis, Missouri. She testified that she had planned to move to St. Louis when the appellant returned to the house in Beltsville,
but was delayed when she suffered a serious injury to her finger while at work in Washington, D.C. She said she instituted proceedings under the Washington workmen's compensation law and was required to remain in the area to receive medical treatment thereunder. She testified that she remained in the same house as her husband during this period as "a matter of financial convenience". Immediately after the wife left Maryland to go to St. Louis the parties had an attorney prepare a separation agreement, formalizing their prior understanding, which they signed in October, 1962. Both parties testified that hey did not have sexual relations during the six weeks' period when both occupied the house in Beltsville, the husband having slept in the den and the wife in the master bedroom, and this was corroborated to some extent by other testimony. After the wife left, Mr. Lillis remained in the home.
Mrs. Lillis remained in St. Louis until June, 1963, when she returned to Maryland to clear up matters regarding further medical treatment for the previous injury to her finger. For a period of approximately two weeks she and her husband again occupied the house in Beltsville at the same time. As before, the reason asserted for their living in the same abode was that it was "a matter of financial convenience". Both parties testified that they did not have sexual relations during the two weeks' period. The wife then moved to Fort Wayne, Indiana, where she remained until August, 1963, when she returned to Maryland for an operation on her finger, again moving into the Beltsville house. However, upon the wife's return on this occasion, the husband immediately moved out of the house and took up residence ...